Civil Delays and R. v. Jordan – Toronto Employment Lawyer

Swift justice to our clients is very important, especially to employees who have been wrongfully dismissed with no, or improper, notice. That said “swift” in the civil court context can mean an employee is left to wait at least one year before their hearing.

In the 2016 decision of R v Jordan, the Supreme Court of Canada revisited s. 11(b) of the Canadian Charter of Rights and Freedoms which states an accused person has right “to be tried within a reasonable time.” In the decision, the Court outlines a new test in order to elevate the “culture of delay”. In doing so the Court outlined a framework containing a ceiling (18 months for trials provincial court and 30 months for trial in superior court from the time of charge to the end of the trial) beyond which the delay in the trial is presumptively unreasonable. Beyond the ceiling, the Crown must demonstrate that the delay is not unreasonable by establishing the presence of exceptional circumstances. If the total delay is less than the ceiling, then the defence must establish the delay was unreasonable by 1. Showing the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings 2. The case took markedly longer than it reasonable should have.

Canada’s highest court in the very opening of this decision wrote “Timely justice is one of the hallmarks of a free and democratic society”. Even though this decision centered around the delays of the criminal systems, this sentence does not specify “criminal” affairs. In other words, access to and adjudication of all legal matters is at the very core of our democratic society.

As noted in the Jordan decision, delay is present in not just the criminal but also the civil court system, for which there are several reasons. For instance, there is much delay in the appointment of judges, and filling vacancies on the bench. Specifically in Toronto, at the end of 2016 there were several judicial vacancies waiting for an appointment, leaving the civil branch of the Superior Court with only about two-thirds of the positons filled. In addition, with a growing Toronto population, the number of available judicial positions has not increased proportionately with the population, while the number of claims continue to soar.

In the criminal context, it is obvious that expeditious justice is very important as the liberty of a person is at stake, and the accused, the victims and their families’ ability to move on from an often-traumatic event is frustrated. Civilly, delays in the system are often discussed in the context of access to justice, but not litigated, in and of itself, since the Canadian Chart of Rights and Freedoms do not explicitly provide such a right. However, if delays continue in the civil context at the current rate, there is a danger that a section 7 Charter right infringement may be activated: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

From an employment law perspective, most litigation deals with wrongful dismissal, or the length of an employee’s notice of termination. The idea behind wrongful dismissal laws are to help bridge the gap between employment by allowing an employee the time to find a new job while still remaining paid from their former employer. Termination pay also levels the playing field between the employee and the employer who is making these decisions without the input from the employee who relies on them to survive financially, by forcing the employer to have ‘skin in the game’.

As many litigators and litigants will be painfully aware, when an employee makes a claim for wrongful dismissal and that claim proceeds to trial, these trials are often occurring years from the time the employee was terminated. In these instances, the very core of wrongful dismissal laws are not served; the employee did in fact go without pay in between jobs, faced financial ruin, are often beyond the “bridge” the notice period offers and, hopefully, in a new job. While the employee is still entitled to the termination pay, there is an inherent law of diminishing returns, as the pay is worth more to the employee during the actual notice period itself when they were without remuneration.

The bar is experiencing a more active judiciary in order to help ease the backlog. For instance, the expanding scope of summary judgment, in a post-Hryniak v Mauldin (2014 SCC 7) and Beatty v Best Theratronics Ltd. (2014 ONSC 3376) world, coupled with the creation of Civil Practice Court, where counsel attend before a judge to schedule a summary judgment motion. The judges in Civil Practice Court often assist the parties to set a timetable and to fashion the most efficient process moving forward.

Aside from the current judiciary maximizing the resources available to them to help ease the overburdened system, it would be most helpful to continue to appoint new, diverse judges promptly, and in an ideal world, increase the number of judged proportionately with a fluctuating population. The current administrative rules of the Court are also not technologically current, and more electronic management may also help make filing and finding materials quicker and more organized.

The writer, Samantha Lucifora, is an associate lawyer at Monkhouse law practicing employment and disability law for both employees and employers.